Clapham v Butler

[2016] QDC 268

DISTRICT COURT OF QUEENSLAND

CITATION:

Clapham v Butler & Anor [2016] QDC 268

PARTIES:

DONALD IAN CLAPHAM

(plaintiff)

v

JENIE JUDY JESSIE BUTLER

(first defendant)

and

ALLIANZ AUSTRALIA INSURANCE LTD (ABN 15 000 122 850)

(second defendant)

FILE NO/S:

BD 3469/15

DIVISION:

PROCEEDING:

Civil Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

2 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

27 and 28 October 2016

JUDGE:

Andrews SC DCJ

ORDER:

Judgment for the plaintiff against the second defendant in the sum of $18,750.05

CATCHWORDS:

DAMAGES – PERSONAL INJURIES – QUANTUM

Bell v Mastermyne Pty Ltd [2008] QSC 331 at [19] cited

COUNSEL:

Moon for the plaintiff

Morton for the first and second defendants

SOLICITORS:

Dwyer Law Group for the plaintiff

Moray & Agnew for the first and second defendants

Background

1. The plaintiff and the first defendant were each driving a different motor vehicle northbound on Sandgate Road toward that road’s intersection with Centro Toombul Access Road.  The first defendant negligently drove into the rear of the plaintiff’s stationary vehicle. As a result, the plaintiff suffered an injury to his right wrist and an injury to his thoracic/lower cervical spine. Within a week he also complained of knee pain. He continues to feel symptoms in the wrist and knee which interfere with his work.

Issues

1. Did the plaintiff suffer an injury to his right knee in the collision or are his subsequent symptoms in the knee a coincidence caused by pre-existing pathology? Has the wrist injury sustained in the collision resolved so that continuing symptoms are due to pre-existing pathology? Has the injury to the thoracic/lower cervical spine resolved? Did the plaintiff sustain an injury to the chest and ribs? And, if so, has it resolved?  Has the plaintiff lost income he would otherwise have earned?  Will the injuries sustained in the collision produce any financial loss in the future?

Facts

1. The plaintiff was born on 28 September 1947 and is aged 69 years and one month. He has qualifications and experience as a builder in Queensland and New South Wales. 

1. In the financial year to 30 June 2010 the plaintiff’s individual income tax return recorded that he had no gross or net income.  In the calendar year 2010 the plaintiff was building a project house in Brisbane which he had designed. 

1. In the financial year to 30 June 2011 the plaintiff’s individual income tax return recorded that he earned no gross or net income.

1. In the financial year to 30 June 2012 the plaintiff’s individual income tax return recorded that he earned a net income of $62,772 and gross income of $82,584 as Managing Director of Spectrum Constructions. The plaintiff was the sole income producer for Spectrum Constructions which employed his de-facto partner to run the office. It follows that the plaintiff’s earning capacity was something more than was suggested by his own net income paid by Spectrum Constructions.

1. Between August and November 2012 unrelated heart surgery and rehabilitation kept the plaintiff from working as a telecommunications site designer…